W. T. Raleigh Co. v. Rotenberry

• Decision Date: 11 November 1935
• Docket Number: 31895
• Court: Mississippi Supreme Court
• Parties: W. T. RALEIGH CO. v. ROTENBERRY et al

164 So. 5

174 Miss. 319

W. T. RALEIGH CO. v. ROTENBERRY et al

No. 31895

Supreme Court of Mississippi

November 11, 1935

Division B

Suggestion Of Error Overruled January 13, 1936.

APPEAL from the circuit court of Yalobusha county HON. JOHN M KUYKENDALL, Judge.

Action by the W. T. Raleigh Company against M. T. Rotenberry and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Affirmed.

Kermit R. Cofer, of Water Valley, for appellant.

Appellant maintains that the honorable circuit court erred in sustaining objections made by counsel for surety defendants to the ledger sheets, order sheets, and invoices sought to be introduced by plaintiff.

This is a suit on a guaranty bond and not on an open account.

W. T. Raleigh Co. v. Fortenberry, 138. Miss. 410, 103 So. 227; J. R. Watkins Medical Co. v. McCall, 133 N.W. 966; Gordon et al. v. W. T. Raleigh Co., 245 P. 825.

Had this suit been on an open account, appellees' objections to the various documents sought to be introduced might have been properly sustained, but the Fortenberry case cited above definitely eliminated any chance of regarding this as a suit on open account.

The ledger sheets are admissible as they are.

Morgan v. King, 128 Miss. 401, 91 So. 30.

Regardless of whether the books were kept to appellees' liking, they were bound by the entries made therein. By the execution of the contract being sued on, they not only agreed to pay such sum as Gibson might on the 2d day of January, 1930, be owing, but placed their stamp of approval on the method of keeping books by appellant, and adopted those books as the proper source from which to ascertain the amount of indebtedness.

W. T. Raleigh Co. v. Deavors et al., 209 Ala. 127, 95 So. 459; W. T. Raleigh Co. v. Langeland, 261 P. 93.

The appellees, having adopted as the authoritative source of their information regarding the status of Gibson's account with appellant, now must stand upon the books and the amount shown to be due by those books.

The order sheets and invoices should have been admitted.

22 C. J., page 1182; W. T. Raleigh Co. v. Deavors, 95 So. 459, 209 Ala. 127.

The honorable circuit court erred in sustaining the motion of defendants, appellees here, to exclude the evidence offered for and on behalf of the plaintiff and instruct the jury to find for the defendants.

Morgan v. King, 128 Miss. 401, 91 So. 30; Duffy v. Kilroe, 76 So. 681; Raleigh v. Fortenberry, 138 Miss. 410, 103 So. 227; 25 R. C. L., page 649, sec. 280; J. R. Watkins Medical Co. v. McCall, 133 N.W. 966.

R. F. Kimmons, of Water Valley, for appellees.

It appears that no liability attaches for any indebtedness due from Gibson to appellant except "as shown by seller's books," and unless the items claimed are shown on the books of the seller this judgment should be affirmed.

It clearly appears from the evidence in this case that the only indebtedness incurred under the contract sued on by Earl A. Gibson, the principal, after the second day of January, 1930, has been paid in full, and the only claim the appellant has is an indebtedness incurred prior to the execution of the contract relied on by the appellant, and the only liability of the appellees, if any at all, is as sureties. Therefore being an effort to force the appellees "to answer for the debt or default or miscarriage of another person," no liability attaches to them unless "the promise or agreement . . . or some memorandum or note thereof was in writing and signed by them." (Code 1930, sec. 3343.) We insist that no such writing exists and this action must fail.

It is true as has been held by this court in a number of cases that the promise or agreement memorandum or note may consist of different kinds of writing, but it is also held that the terms of the contract must be expressed with certainty so that the contract between the parties may be clearly understood from the contract itself or some other writing to which it refers without resorting to parol evidence.

Waul v. Kirkham, 27 Miss. 823, 828; 1 Sug. Vend. 94; Smith v. Arnold, 5 Mason, 416; Gulfport Cotton Oil Co. v. Reneau, 94 Miss. 904; Rector Provision Co. v. Sauer, 69 Miss. 235; Taylor v. Sayle, 163 Miss. 822; Turnpike Co. v. Gooch, 113 Miss. 50; Fisher v. Kuhn, 54 Miss. 480.

Question naturally arises what do you mean by books? Mr. Webster says "a book is a collection of sheets of paper of similar material blank, written or printed, bound together; a volume or collection of sheets in which accounts are kept."

1 Words and Phrases, first series, pages 477 and 839; Turbeville v. State, 56 Miss. 793; Merchants Union Ins. Co. v. Johnson, 135 Miss. 311; Finch & Co. v. Brewer, 133 Miss. 9.

In this particular case the effort is made to supplement the books of the company by showing the original orders given by Gibson.

We must remember that there are two things in the contract which are required. That is to say the sureties in this case agreed to stand for "goods, wares and merchandise" as shown by seller's books, and if the books do not show what was sold them under the statute of frauds there was no other evidence available to appellant.

Another bar to a recovery in this suit is the fact that a judgment was taken against Gibson, the principal, at a former term of the court, and we contend that this operated as a discontinuance of the suits against the sureties.

OPINION

Griffith, J.

Appellant is a manufacturer and seller of proprietary medicines extracts, and the like. One Gibson was a local retail dealer for appellant, and appellees were the accommodation sureties on a contract of suretyship executed unto appellant in behalf of said local retail dealer, in which contract the appellant is referred to as the seller, and the local retail dealer as the buyer. The dealer or buyer failed to pay a balance said to be due by him to appellant, and suit was instituted against the buyer and the sureties. The proof showed that payment had been made for all purchases subsequent to the execution of the contract...